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EXHIBIT (5)
September 22, 1997
CMS Energy Corporation
Fairlane Plaza South
330 Town Center Drive
Suite 1100
Dearborn, MI 48126
Gentlemen:
I am the Assistant General Counsel of CMS Energy Corporation,
a Michigan corporation (the "Company"), and have acted as such in connection
with the Registration Statement on Form S-3 (the "Registration Statement")
being filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the registration of $30,000,000 aggregate principal amount
of debt securities (the "Debt Securities"). Capitalized terms not otherwise
defined herein have the respective meanings specified in the Registration
Statement.
In rendering this opinion, I have examined and relied upon a
copy of the Registration Statement. I have also examined, or have arranged for
the examination by an attorney or attorneys under my general supervision,
originals, or copies of originals certified to my satisfaction, of such
agreements, documents, certificates and other statements of governmental
officials and other instruments, and have examined such questions of law and
have satisfied myself as to such matters of fact, as I have considered relevant
and necessary as a basis for this opinion. I have assumed the authenticity of
all documents submitted to me as originals, the genuineness of all signatures,
the legal capacity of all natural persons and the conformity with the original
documents of any copies thereof submitted to me for examination.
Based on the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing
under the laws of the State of Michigan.
2. The Company has corporate power and authority to
execute and deliver the Subordinated Debt Indenture
(the "Subordinated Debt Indenture") between the
Company and The Bank of New York and to authorize and
sell the Subordinated Debt Securities pursuant
thereto, and to sell the Senior Debt Securities
pursuant to the Senior Debt Indenture dated as of
September 15, 1992, as supplemented (the "Senior Debt
Indenture") between the Company
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and NBD Bank, as Trustee (the Subordinated Debt
Indenture and Senior Debt Indenture, collectively,
the "Indentures").
3. The Debt Securities will be legally issued and
binding obligations of the Company (except to the
extent enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting
the enforcement of creditors' rights generally and by
the effect of general principles of equity,
regardless of whether enforceability is considered in
a proceeding in equity or at law) when: (i) the
Registration Statement, as finally amended (including
any necessary post-effective amendments), shall have
become effective under the Securities Act and the
Indentures (including any necessary supplemental
indentures) shall have been qualified under the Trust
Indenture Act of 1939, as amended, and duly executed
and delivered by the Company and the Trustees; (ii)
an appropriate Pricing Supplement with respect to the
particular Debt Securities then being sold by the
Company shall have been filed with the Commission
pursuant to Rule 424 under the Securities Act; (iii)
the Company's Board of Directors or a duly authorized
committee thereof shall have duly adopted final
resolutions authorizing the issuance and sale of the
particular Debt Securities then being sold by the
Company as contemplated by the Registration Statement
and the particular Indenture; and (iv) the
supplemental indenture under which the particular
Debt Securities are to be issued has been duly
authorized, executed and delivered, and the
particular Debt Securities then being sold by the
Company shall have been duly executed and
authenticated as provided in the particular Indenture
and such resolutions, and shall have been duly
delivered to the purchasers thereof against payment
of the agreed consideration therefor.
4. The CMS Energy Common Stock ($.01 par value) will be
legally issued, fully paid and non-assessable when:
(i) the Registration Statement, as finally amended,
shall have become effective under the Securities Act;
(ii) CMS Energy's Board of Directors or a duly
authorized committee thereof shall have duly adopted
final resolutions authorizing Subordinated Debt
Securities to be converted into CMS Energy Common
Stock, as contemplated by the Registration Statement
and prospectus supplement relating thereto; and (iii)
upon conversion, certificates representing the CMS
Energy Common Stock, shall have been duly executed,
countersigned and registered and duly delivered to
the purchasers thereof against payment of the agreed
consideration therefor.
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For purposes of this opinion, I have assumed that there will
be no changes in the laws currently applicable to the Company and that such
laws will be the only laws applicable to the Company.
I do not find it necessary for the purposes of this opinion to
cover, and accordingly I express no opinion as to, the application of the
securities or blue sky laws of the various states to the sale of the Debt
Securities.
I am a member of the bar of the State of Michigan and I
express no opinion as to the laws of any jurisdiction other than the State of
Michigan and the federal law of the United States of America.
I hereby consent to the filing of this opinion as an exhibit
to the Company's Registration Statement on Form S-3 relating to the Debt
Securities and to all references to me included in or made a part of the
Registration Statement.
Very truly yours,
/s/ Michael D. Van Hemert
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Michael D. Van Hemert
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EXHIBIT (12)
CMS ENERGY CORPORATION
Ratio of Earnings to Fixed Charges
(Millions of Dollars)
Six Months
Ended Years Ended December 31
June 30, 1997 1996 1995 1994 1993 1992
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(b)
Earnings as defined (a)
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Consolidated net income (loss) $ 138 $ 240 $ 204 $ 179 $ 155 $(297)
Income taxes 79 139 118 92 75 (146)
Exclude equity basis subsidiaries (36) (85) (57) (18) (6) 10
Fixed charges as defined, adjusted to
exclude capitalized interest of $7, $8,
$8, $6, $5, and $3 million for the six
months ended June 30, 1997 and for the
years ended December 31, 1996, 1995,
1994, 1993 and 1992, respectively 146 275 268 226 241 225
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Earnings as defined $ 327 $ 569 $ 533 $ 479 $ 465 $(208)
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Fixed charges as defined (a)
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Interest on long-term debt $ 126 $ 230 $ 224 $ 193 $ 204 $ 169
Estimated interest portion of lease rental 5 10 9 9 11 16
Other interest charges 22 43 42 30 32 43
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Fixed charges as defined $ 153 $ 283 $ 275 $ 232 $ 247 $ 228
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Ratio of earnings to fixed charges 2.13 2.01 1.94 2.07 1.88 -
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NOTES:
(a) Earnings and fixed charges as defined in instructions for Item 503 of
Regulation S-K.
(b) For the year ended December 31, 1992, fixed charges exceeded earnings by
$441 million. Earnings as defined include a $520 million pretax loss on the
settlement of MCV Power Purchases, $(15) million for potential customer refunds
and other reserves related to 1992 but recorded in 1991, and $6 million
relating to CMS Generation Company's reduction in its investment in The Oxford
Energy Company. The ratio of earnings to fixed charges would have been 1.33
excluding these amounts.